Handling Probation Violations

Posted on Jun 14, 2011 9:33pm PDT

Probation violations are always tricky. Handling a probation violation is a true juggling act: you have to juggle the underlying offense for which you are on probation, any prior probation violations, and the acts/omissions constituting the current violation. If the alleged violation arises out of a new criminal charge, that adds yet another dimension of juggling - especially if the client is on felony probation (DA's will sometimes perform a "probation squeeze" whereby they use the risk of substantial time on the probation violation to leverage a favorable disposition for them on the new offense).

After handling many probation violations, one thing has become clear: timing and strategy are everything. This is especially true since "the law" is not on your side considering that the burden of proof in a probation violation hearing is substantially reduced ("proponderance of the evidence" as opposed to the usual "beyond a reasonable doubt"). As such, it is especially important for an attorney to understand the inner-workings of the particular court where the probation violation is being heard.

One great example is a case we resolved a few weeks ago. Client was on felony probation for theft related charges. He was arrested on suspicion of DUI. At the time of the arrest, Client had suffered two prior probation violations. At his probation violation arraignment, the Judge offered him a very decent offer (given his priors): 180 days jail for the violation alone.

Rather than accepting the offer, we decided to "trail" (postpone) the probation violation pending resolution of the new DUI case. We knew that by employing this strategy, the case would be transferred out of felony court and back to misdemeanor court in front of a more favorable Judge. Sure enough, at the DUI arraignment we discussed the case with the Judge and were able to negotiate a plea whereby client would receive time served (20 days) as opposed to the 180 days offered by the less-favorable felony Judge. Client was released the next day. He ended up doing less time on his third violation than he did for his first violation.

If you've been charged with a probation violation in Orange County, call Santa Ana Criminal Defense Attorneys Aguilar & Sonnonstine, APC. We know system, the players, and the strategies that work.

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